Achieving HIV Targets through Human Rights Instruments

Maximizing Existing Mechanisms to Reach National HIV Goals for Key Populations: What HIV Activists Should Know

By Stephen Leonelli and David Ruiz Villafranca

This post presents an overview of the human rights political mechanisms and expert bodies available to activists at the Human Rights Council, as well as resources for how they can be utilized.

Since the beginning of the HIV epidemic, stigma and discrimination have fueled human rights violations against communities that are marginalized and particularly vulnerable to HIV. There is overwhelming evidence that laws criminalizing same-sex relations, sex work, drug use, HIV non-disclosure, exposure or transmission, and other punitive legislation not only violate human rights, but also negatively impact the effectiveness of the HIV response.[i] Moralistic and politically-driven policies that reinforce homophobia, transphobia, whore-phobia, and drug user-phobia have exacerbated the ongoing and disproportionate burden of HIV among key populations.

Community action has been fundamental in pushing governments to address the structural barriers that impede access to HIV prevention, care, and treatment services. Unfortunately, government-led responses to the epidemic have generally focused more on biomedical interventions, rather than repealing and replacing laws, policies, and practices that fail to uphold human rights. Global HIV governance bodies, donors, and governments have increasingly recognized the impact of human rights violations on the HIV response, but fail to support the interventions needed to uphold rights as an integral aspect of the HIV response.

Anti-retroviral medications for treatment and prevention are powerful tools for improving health, decreasing mortality, and reducing HIV incidence. However, access to medications and other aspects of the biomedical response are only part of what is necessary for a more comprehensive response to HIV (see Reconsidering Primary Prevention of HIV: New Steps Forward in the Global Response). Addressing structural barriers and human rights violations are equally important components. For success, communities must be meaningfully engaged and exert ownership in all aspects of the global response. This includes reviewing government’s role in fulfilling human rights of people affected by and living with HIV.

The UN Development Programme and the International Centre on Human Rights and Drug Policy are currently developing International Guidelines on Human Rights and Drug Control, which will provide critical guidance to advocates, governments, intergovernmental organizations, and development partners on preventing human rights violations linked to drug control and enforcement.[iii]

In addition to human rights resolutions and guidance on HIV and human rights programming, the latest UN General Assembly’s political declaration on HIV and AIDS (2016 Political Declaration) reaffirmed that the full realization of all human rights and fundamental freedoms for all is an essential element in the global response to the HIV epidemic. Further, the recently adopted 2030 Agenda for Sustainable Development includes a strong political commitment to ending AIDS, promoting human rights, ensuring equality, and “leaving no one behind” as key drivers of successful implementation.

However, as of January 2016, at least 60 countries have enacted laws that specifically criminalize HIV non-disclosure, exposure or transmission, and 56 countries have special regulations on entry and residence for people living with HIV, including 27 countries that contain laws that permit the deportation of people diagnosed with HIV.[iv] Over 78 countries or jurisdictions criminalize same-sex relations, and in nine countries of these countries same-sex acts may be punished by death. Gender non-conforming and transgender people are explicitly criminalized and prosecuted in 57 countries, and they suffer from widespread discrimination and violence throughout the world.[v] Sex work is illegal and criminalized in 116 countries.[vi] An estimated 56-90% of people who inject drugs will be incarcerated at some point during their lives,[vii] and yet only 8% of people who need harm reduction services (such as needle and syringe programs or opioid substitution therapy) have access.[viii]

Human rights instruments, described below including both independent expert bodies and political mechanisms, can be utilized to hold governments accountable for human rights violations.[ix] Based on lessons learned from the global movement for human rights of LGBTI people, we know that engaging both expert bodies and political mechanisms at the Human Rights Council can make a difference. Engagement was crucial to build momentum for resolutions on and integration of sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) in global human rights discourses. HIV activists should also pursue instruments within the Human Rights Council as avenues for creating an evidence base and precedent for governments to respect, protect, and fulfil the human rights of people affected by and living with HIV.

Expert Bodies

The Office of the High Commissioner of Human Rights (OHCHR) is part of the United Nations Secretariat and answers directly to the Secretary-General. OHCHR provides technical, substantive, and secretariat support to the Human Rights Council, as well as mainstreams human rights across all work areas of the UN system. OHCHR has field presences in certain countries to engage on human rights issues at the national-level.

Treaty Bodies. A series of international human rights treaties adopted since 1945 have conferred the legal form on inherent human rights and developed the body of international human rights law. The Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966) and its two Optional Protocols (1966 and 1989), and the International Covenant on Economic, Social, and Cultural Rights (1966) form the so-called International Bill of Human Rights. In addition, seven other international human rights instruments and their accompanying optional protocols form the basis of the core international human rights treaties. All treaty bodies are seated within the Human Rights Council.

Committees of independent experts form “treaty bodies” to monitor the implementation of treaty provisions by State parties. There are ten treaty bodies in total, and we highlight the most relevant bodies to HIV activists below:

By becoming parties to international human rights treaties, States assume obligations and duties to respect, protect, and fulfill human rights. Governments that ratify an international human rights treaty must enact domestic measures and legislation compatible with their treaty obligations, as well as participate in periodic reviews of implementation by treaty bodies in the human rights system. Treaty bodies monitor State compliance with treaty provisions through the examination of national reports, relevant information submitted by UN agencies, and civil society “shadow reports.” The committees issue concluding observations, which detail positive aspects, concerns, and recommendations for further action.

Additionally, the Human Rights Committee, the Committee Against Torture, and the Committee on the Elimination of Discrimination Against Women contain a procedure for submission of individual complaints. Persons claiming to be victims of human rights violations may submit a complaint to the relevant treaty body, which will then issue its findings and recommendations to the State party concerned (provided domestic remedies are exhausted).

Special Procedures. Special Procedures is the general name given to independent individuals (special rapporteurs or independent experts) and working groups that are appointed by the Human Rights Council to monitor human rights in different countries or in relation to specific issues. Special Procedure mandate holders are prominent, independent experts working on a voluntary basis, and their work usually includes to examine, monitor, advise, and publicly report on human rights situations. Often their independence enables them to shine a light on issues that are otherwise too politically sensitive for discussion at the international level. All mandates report to the Human Rights Council on their findings and recommendations, and many also report to the General Assembly.

There are currently 44 thematic mandates and 12 country mandates, of which we highlight the following:

Additionally, ILGA-World has created short overviews of the LGBTI/SOGIESC related work of every Special Procedure mandate holder available here. This is an excellent resource to understand how experts have previously commented on human rights violations related to SOGIESC.

Political Mechanisms

The Human Rights Council is the main human rights body of the UN, and it was created in 2006 by General Assembly Resolution 60/251. This intergovernmental body, which meets in Geneva 10 weeks a year, is composed of 47 elected United Nations Member States who serve for an initial period of 3 years, and cannot be elected for more than two consecutive terms. All UN Member States, even those who are not elected into the 47 voting roles, can observe and comment on processes at the Human Rights Council.

The Human Rights Council can adopt texts with or without a recorded vote, adopting by majority vote. While the decisions of the Council are not legally binding, resolutions that are inclusive of SOGIESC and HIV set important precedence and guidance for the protection and promotion of human rights at the national-level. To date there have been five resolutions about HIV and human rights adopted at the Human Rights Council.

The three subsidiary bodies of the Human Rights Council are the Universal Periodic Review mechanism (described below), the Advisory Committee, which serves as the Human Rights Council’s “think tank” providing expertise and advice on thematic human rights issues, and the revised Complaints Procedure mechanism, which allows individuals and organizations to bring complaints about human rights violations to the attention of the Human Rights Council.

Universal Periodic Review (UPR). The UPR is the only mechanism that reviews all human rights for all Member States, regardless of whether the State Under Review (SUR) has become party to specific human rights treaties. Each Member State participates in the UPR every 4.5 years, and all Member States can make recommendations that must be acknowledged by the SUR. A calendar of country reviews for the 3rd cycle (2017-2021) is available on the UPR website here.

Evidence has also shown that the UPR can be a critical avenue for promoting a human rights-based approach to sexual and reproductive health and well-being: sexual and reproductive health and rights (SRHR) was one of the most frequently cited issues in the first UPR cycle (2008 – 2012).[x] Stop AIDS Alliance, with support from Partnership to Inspire, Transform and Connect the HIV Response (PITCH) and Bridging the Gaps, is finalizing a report on HIV-related issues in cycle 1 and 2 of the UPR; the analysis from the report will be of great importance to maximize the opportunities utilize the UPR to address violations of people affected by and living with HIV.

There are several meaningful entry points for civil society in the UPR process, including:

Submitting materials, or “shadow reports,” to supplement the SUR’s report;

Participating in national consultations, when organized by the SUR;

Lobbying States to raise concerns and make recommendations;

Making oral statements when the SUR accepts or rejects recommendations from other governments;

Conclusion

A tailored, strategic, and integrated combination of public health, human rights, and community interventions are necessary to address challenges in ending HIV. HIV activists should explore utilizing the above mechanisms as an avenue for addressing structural barriers that stifle the HIV response and impede realization of HIV targets. Partnerships with social justice movements are critical to bring health into international human rights spaces.

[i]See Global Commission on HIV and the Law, Risks, Rights and Health (July 2012); Schwartz, S., et al, “The immediate effect of the Same-Sex Marriage Prohibition Act on stigma, discrimination, and engagement on HIV prevention and treatment services in men who have sex with men in Nigeria,” Lancet HIV 2/7, pp. e299-e306 (2015); Open Society Foundations, “Criminalising condoms: How policing practices put sex workers and HIV services at risk in Kenya, Namibia, Russia, South Africa, the United States, and Zimbabwe” (2012).